Evidence of meeting #7 for Access to Information, Privacy and Ethics in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was requests.
A recording is available from Parliament.
Liberal
Wayne Long Liberal Saint John—Rothesay, NB
Mr. Mendel and Mr. Drapeau, when do you feel that this culture started to change? When was there a profound change in the culture?
Executive Director, Centre for Law and Democracy
I'm not sure. My history with this goes back, but not right back to the beginning of it in 1983. I think that for the last 15 years at least the culture has not been a positive one. We have reports going back which show that. If you take requests, you can see that. It might go back even further than that.
As I say, in 1982 when we adopted the law, we were very much in a leadership position. All of the bells and whistles that make a law tight and effective, which we now are very aware of today, we weren't so aware of back then. For example, in terms of timelines, we included this provision about delay because we weren't sure whether 30 days, 60 days, or 90 days was going to be reasonable, and we didn't want to create unreasonable burdens on public bodies. That was okay back then, but now we need to respond to our new learning globally and in Canada as well.
I think the real issue is that our law was adopted a long time ago and needs to be updated.
Col (Retired) Michel Drapeau
I can address that. As an author, I'm duty bound to look at the past. I think the system changed at the very moment of its actuation. It was basically put in place by a Liberal government at the time—Mr. Trudeau's—but the first government that came under the access regime was the Mulroney government.
Soon after that particular government, with the bells and whistles going, we now had working access to information, and requests were not flowing in but were being received. There was one request made for, if I remember correctly, records associated with the construction at Sussex Drive for a wardrobe for the shoes of Mrs. Mila Mulroney. The word went out at that time that before you would release any such record, which made the lady of the time...you would check it out with “Fred”, Fred being, if I remember correctly, the cabinet secretary to the Prime Minister.
From that time onwards, there was a sort of resistance that took place and a sort of self-survival instinct. They said that before they would release any of it, they were going to check first before they released any such records, because they might be enduring the ire of the political leaders. At that time, there was a sort of cloud of carefulness as to what you'd release in response to legitimate requests, and the thing has never gone away.
Conservative
The Chair Conservative Blaine Calkins
Mr. Long is very clever. He got almost 10 minutes of the committee's time.
Waiting till the end—maybe we're saving the best for last—I have a couple of colleagues at the table who would like to ask a couple of supplementary questions. We have about 10 minutes left.
Colleagues, with your permission I'd like to ask a few questions. I don't want to run out of time so I'm going to ask you guys before. I don't want a mutiny. I have one or two questions and if we have time we'll go back to members. Is that all right?
My first question is going to be directed primarily at Mr. Drapeau and Mr. Mendel simply because they commented about it and there's a disagreement on the order-making power.
Mr. Drapeau. I got very excited when you started talking about empowering politicians, committees, or members of Parliament, and making Parliament more accountable. I think this is absolutely fantastic.
Mr. Drapeau, if you don't agree with the current system and the current requests that are made by the commissioner in so far as order-making powers, where should those powers lie, keeping in mind that this committee does not have any real official power? We do have some rights as a committee. We can compel witnesses to come, but we can't even force the minister to testify before our committee. I want to ask you for clarification on how you think this committee's role should change with any change to the legislation and what kinds of empowerments there should be and where they should lie, if they shouldn't land in the lap of the commissioner.
Col (Retired) Michel Drapeau
I don't think they should change. I think the green paper spells it out and has a working system, except there have been some major flaws in it. One of the major flaws is that I think we are over-concentrating on the role. It's important but it's not the only player in the access regime that is of the committee itself. If she lacks the resources to do her job properly, the complaint properly, then we should give her more resources. But let's make sure that what she has already is being used properly.
We need to give more powers at the front end where 90% of the requests are handled. Give them the resources; give them the power; give them the kind of encouragement that they require. Only then and if required should we augment these powers, certainly at the commissioner level, with order-making power, because I don't think it's going to solve anything. If it solves something, it'll be a very small fraction of the 2% of requests that are subject to a complaint. It may make us feel good. It may reduce the overall numbers of complaints taken to the federal courts, but at the end of the day that won't help the system, broken as it is at the front end, where over 90% of the requests are mired. So there you are.
Conservative
The Chair Conservative Blaine Calkins
My sense of the current system from my 10 years of experience as a parliamentarian is that if someone in the bureaucracy makes a mistake, for whatever reason—the way it's structured, the way rewards are set up, the way leadership and structure are set up—it's almost impossible for them to admit that they've made the mistake and make a correction. This is a cultural issue and this is what we're talking about.
When it comes to access to information, it seems to me that the culture of the bureaucracy is that we're going to say no to every request unless we find a reason to give out the information, whereas the culture should be that we're going to automatically say yes to everything and only find reasons to keep some information from being disclosed when it comes to some very specific reasons, as the Ambassador for Sweden pointed out. I think this would fix the problem of Canada, as Mr. Mendel pointed out, ranking 59th or whatever it is, and we would move upward in the world.
That would immediately take away all the stories of secrecy. These become the stories in the headlines. It's not about the content of the information usually, but the fact that somebody tried to cover it up. That's usually what the story is all about. Sunlight becomes the great purifier in this.
I think that's where our commissioner wants to go. To anybody here at the committee, do you think the recommendations she has put forward will take us in that direction?
Col (Retired) Michel Drapeau
I think some of them will, yes. Others, no. I made my points in the brief and here today.
We can see access to information as a long assembly line. We think you have access to records. Records have to be in existence. They have to be able to be retracted, to be examined for exemption, exclusion, and so on. That's where the bulk of the work takes place. Then ultimately they are released and if you're not happy with what you get, then you put in a complaint. If you're not happy with the complaint and the decision being made by the commissioner, then you go to court. But it's an assembly.
I'm saying that you need to pay as much attention if not more attention at the top end of the assembly line where 90% of the requests go, and that's all they ever will see, a response from the ATIP coordinator from a specific department. Have a look at that. Are these offices properly staffed? I think not. I could give you a number of institutions where they're lacking people—institutions such as the RCMP where we expect them to be responsive and knowledgeable of the law. They constantly shown to be one of the most complained-against institutions. You've got to be asking yourself why? That's before it even goes to the Information Commissioner.
I'm just saying that the spotlight has to be shone at both locations and my stronger light would be at the starting level, that is at the departmental level. That's where the Information Commissioner and I disagree. Her universe is the 1,600 complaints she gets in a year. My universe is the 78,000 requests that are being made by Canadians.
Executive Director, Centre for Law and Democracy
Mr. Drapeau has made a big point about the 2% of appeals. It's true that only 2% of cases go to appeal, but the impact on the 78,000 cannot be ignored. Somebody referred to the 1,110-day delay that the Department of Defence arrogated to itself. I went to a court case and finally the court decided that the Department of Defence did not have the right to impose that kind of delay. That has an impact on the 78,000, not just the 2% that go to the appeal.
I fully agree that the nature of appeals is not the only part of the system that needs attention, and I agree that resources need to be directed at the front end. I'm not sure what the problem is. Our subject is the act, and I talked about the changes we'd like to see in the act. Having a commissioner with order-making power would reverse the burden of who needs to go to court. That is a huge change in the system. Doing that will make public bodies much more careful not just to follow the decisions of the commissioner. I think that will have an amelioratory effect on the whole system, because those decisions will become binding and they would be respected by those processing the 78,000 requests.
Conservative
The Chair Conservative Blaine Calkins
Thank you very much.
I have one last quick question for Mr. Drapeau because he brought it up. This committee does have some power, authority, and clout, with the 10 members of Parliament at the table. You've asked for the Auditor General to go in and take a look at efficiencies in these commissioners' offices. We, as members of Parliament, sometimes put these commissioners on a pedestal because, frankly, they have a lot of clout and sometimes we fear them. The reality is that they also report to us, and I think we can rightfully take back some of that territory that I feel has been lost.
It is interesting that when we take a look at the four commissions, the Commissioner of Lobbying and the Ethics Commissioner have their own budget lines, but the Privacy Commissioner and the Information Commissioner share a budget line item, when it comes to the estimates. Yet they have completely distinct and set bureaucracies, where we can find some efficiencies.
I'm going to ask you straight up, if there were a motion put before this committee requesting the Auditor General to do some research on both of those offices to come up some advice, would this be a good thing for the committee to do?
Col (Retired) Michel Drapeau
I think that would be the first thing to do. There may be functions that both offices are currently performing that have not been read in the statute. I know this. One is to reform the law. That's not in there. So this has consumed a tremendous amount of resources. There are also jobs to be made, and they may not be resourced properly. Let an independent organization such as the AG take a look at it and come back on the issue of the shared services. Maybe there is a better or more effective way that will enhance the delivery of service. I think that's what we should be doing.
Conservative
The Chair Conservative Blaine Calkins
Fair enough. I'll look forward to somebody moving such a motion at a future meeting.
In the meantime, colleagues, I did use up the remaining time. Other committees need to come and use this room, I'm guessing. I apologize that I didn't leave enough time.
I want to thank our three guests for appearing here today and taking the time to enlighten this committee. I know we can call upon you again as we continue our deliberations. I want to thank you very much for making the effort to be here.
We will see you on Thursday, when we will have the minister, the Honourable Diane Lebouthillier, and Commissioner Therrien, here to talk about some information. I would encourage you to be there. It's going to be an interesting meeting.
We will get the agenda to you on next week's witnesses as soon as possible.
Thank you.
This meeting is adjourned.